Telecom Immunity: It's still about the illegal spying

by Turkana

With FISA Deform again imminent, discussion has focused on telecom immunity, Senator Reid's inexplicable refusal to honor Senator Dodd's hold, and the prospects of a successful filibuster, with Senators Clinton, Obama and Biden following Senator Dodd's lead. In purely electoral terms, this has been one more reason why it is too bad Senator Dodd's candidacy likely won't have any impact on the presidential campaign. It is also further proof that we need him to replace Senator Reid, as Majority Leader.

But the real story is still about domestic spying. The real story is still about the Bush Administration breaking a law that was specifically designed to stop abuses of government that had been going on for decades, but most egregiously by the Nixon Administration.

The illegal activities of the telcos in aiding our government in domestic, warrantless spying extends far beyond 9/11 and preventing another terrorist attack on the U.S. Not that that was a valid justification for the government to overthrow the rule of law in the first place, but what a cynical effort by this administration to deceive.

Congress should not be voting on any amnesty for the telcos until full investigations of these new revelations have been conducted. The pending legislation on FISA, or at least this provision of it, should be shelved until Congress has a full picture of what these companies have been doing on behalf of our government.

Just so. It's not only about shielding the telcos for having violated the trust of their customers, and possibly the law, it's about preventing a full, fair accounting of what exactly the Bush Administration was doing, spying on the American people. The Constitution, the law, history, and the concept of individual privacy demand this accounting. That's the real story, here.

The facts remain very basic and very simple:

The old FISA law was never a hindrance to legitimate investigations. Despite claims by Bush and his minions that they needed a faster process, in case of potential crisis, the old law already provided the means. As the New York Times explained, almost exactly two years ago:

Under the Foreign Intelligence Surveillance Act of 1978, or FISA, the Federal Bureau of Investigation and the National Security Agency must obtain search warrants from a special court before conducting electronic surveillance of people suspected to be terrorists or spies. Ms. Rice said the administration believed that it needed greater agility in investigating terrorism suspects than was possible through that process.

"These are stateless networks of people who communicate, and communicate in much more fluid ways," she said. But several national security law experts and civil liberties advocates note that government officials are able to get an emergency warrant from the secret court within hours, sometimes minutes, if they can show an imminent threat.

Under "extraordinary" circumstances, the government also can wait 72 hours after beginning wiretaps to get a warrant, but the administration did not seek to do that under the special program, which monitors the international communications of some people inside the United States.

In other words, they were already able to start wiretaps immediately, without any external review or approval process. All that was required was that they then apply for the legal warrant within three days. You can read the actual Code here.

According to a lawsuit, filed in June 2006, the Bush Administration was already violating the FISA law, even before the September 11, 2001 terrorist attacks! As Bloomberg reported:

The U.S. National Security Agency asked AT&T Inc. to help it set up a domestic call monitoring site seven months before the Sept. 11, 2001 attacks, lawyers claimed June 23 in court papers filed in New York federal court.

The allegation is part of a court filing adding AT&T, the nation's largest telephone company, as a defendant in a breach of privacy case filed earlier this month on behalf of Verizon Communications Inc. and BellSouth Corp. customers. The suit alleges that the three carriers, the NSA and President George W. Bush violated the Telecommunications Act of 1934 and the U.S. Constitution, and seeks money damages.

``The Bush Administration asserted this became necessary after 9/11,'' plaintiff's lawyer Carl Mayer said in a telephone interview. ``This undermines that assertion.''

It seems that the Administration was so intent on violating the law, even before the September 11 attacks, that they then retributively destroyed the career of a telecom executive who wouldn't play along. Kagro X provided a concise explanation, and then summarizeds thusly:

And the moral of the story? Political opponents of the Bush "administration" get fingered by the feds. You get spied on. And Sen. Jay Rockefeller (D-WV), writing the Senate's new FISA bill, says Nacchio -- who refused to hand over customer data illegally to the governmetn -- can rot, while AT&T and others -- who gave you up to the feds -- get retroactive immunity.

The Administration was so desperate to expand domestic spying that it ignored its own legal advisors, and tried to bully a seriously ill Attorney General into signing off on it while he was too weak to likely even know what he was doing. Even the normally complacent Washington Post editorial board was outraged:

JAMES B. COMEY, the straight-as-an-arrow former No. 2 official at the Justice Department, yesterday offered the Senate Judiciary Committee an account of Bush administration lawlessness so shocking it would have been unbelievable coming from a less reputable source. The episode involved a 2004 nighttime visit to the hospital room of then-Attorney General John D. Ashcroft by Alberto Gonzales, then the White House counsel, and Andrew H. Card Jr., then the White House chief of staff. Only the broadest outlines of this visit were previously known: that Mr. Comey, who was acting as attorney general during Mr. Ashcroft's illness, had refused to recertify the legality of the administration's warrantless wiretapping program; that Mr. Gonzales and Mr. Card had tried to do an end-run around Mr. Comey; that Mr. Ashcroft had rebuffed them.

Mr. Comey's vivid depiction, worthy of a Hollywood script, showed the lengths to which the administration and the man who is now attorney general were willing to go to pursue the surveillance program. First, they tried to coerce a man in intensive care -- a man so sick he had transferred the reins of power to Mr. Comey -- to grant them legal approval. Having failed, they were willing to defy the conclusions of the nation's chief law enforcement officer and pursue the surveillance without Justice's authorization. Only in the face of the prospect of mass resignations -- Mr. Comey, FBI Director Robert S. Mueller III and most likely Mr. Ashcroft himself -- did the president back down.

The Vice President was directly involved in this effort. From the Washington Post:

Vice President Cheney told Justice Department officials that he disagreed with their objections to a secret surveillance program during a high-level White House meeting in March 2004, a former senior Justice official told senators yesterday.

The meeting came one day before White House officials tried to get approval for the same program from then-Attorney General John D. Ashcroft, who lay recovering from surgery in a hospital, according to former deputy attorney general James B. Comey.

The Administration lackey who helped lead the effort to bully the ailing Attorney General ended up replacing him, thus ensuring that there would be no further hindrances to the spying Bush and Cheney wanted. It was later revealed that the spying was much more extensive. The Washington Post, again:

The Bush administration's chief intelligence official said yesterday that President Bush authorized a series of secret surveillance activities under a single executive order in late 2001. The disclosure makes clear that a controversial National Security Agency program was part of a much broader operation than the president previously described.

The disclosure by Mike McConnell, the director of national intelligence, appears to be the first time that the administration has publicly acknowledged that Bush's order included undisclosed activities beyond the warrantless surveillance of e-mails and phone calls that Bush confirmed in December 2005.

What this means is that our own Government was spying on us using methods even more blatantly illegal than the "Terrorist Surveillance Program" that was revealed. Whatever these "other programs" entailed shocked the conscience even of the right-wing Bush lawyers in the DOJ. Thus -- as Marty Lederman put it -- "Can You Even Imagine How Bad it Must Have Been?"

What arguable excuse is there for continuing to conceal from Americans what our government did? Whatever it was they were doing is unquestionably illegal. It has been abandoned for years now, removing any "national security" justification for ongoing secrecy. And it entails our government, at the highest levels, spying on us in ways that were so wrong and illegal that the Attorney General and FBI Director and various deputies all threatened to quit.

Is anyone in the Beltway interested in what they were doing during this time? It is not news that there were "other intelligence activities" besides the "Terrorist Surveillance Program" that were illegal and extreme. We have known that for a-year-and-a-half based on how they have parsed their answers. And we knew it inescapably once James Comey said that he was going to quit once he realized what they were doing and how illegal it was.

Our Beltway political class just has chosen not to demand to know what was done, notwithstanding its blatant illegality. How can we just allow these government activities -- of plainly illegal government spying on us during 2001-2004 -- to remain concealed?

And the entirety of the linked Lederman article is a must-read.

The FBI has already been spying well beyond what is necessary. ABC News reported that the terror watch list includes more than half a million names; and the Washington Post revealed that the FBI broke the law or its own rules more than 1000 times!

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So, the real questions remain:

1) Was the Bush Administration illegally spying on Americans, even before the September 11 attacks? Grant telecom immunity, and we may never know.

2) Why was the Bush Administration so desperate to be able to spy on Americans. Grant telecom immunity and we may never know.

3) On whom did the Bush Administration spy, and why? Grant telecom immunity, and we may never know.

We do know that the Administration is not above using instruments of government to punish political opponents. We know that there are no laws or morals they are not willing violate. We can all speculate and guess and indulge our darkest suspicions about Bush's domestic spying, but none of that is particularly helpful. What would be helpful would be to investigate. Rather than granting telecom immunity, and thus erecting yet another wall between the Bush Administration's criminal behavior and the public's ability to learn about it, Congress should be backing off from FISA Deform, altogether. Rather than responding to evidence of Bush Administration criminality by making those crimes legal, they should enforce the laws, and reveal to the public the depths of the Bush Administration's depravity.

Defenders of this weak Congress like to point out the bare minimum strength of the Democratic majorities. In many cases, it's a valid defense. But when the Democratic Congressional leadership has parliamentary and procedural powers to stand up against Bush, and for the American people, there is no excuse for them not to. That FISA Deform was rushed through Congress, late last summer, was an outrage. That Democratic leaders promised to revisit it seemed an effort to right a terrible wrong. That they not only failed to follow through, but are now poised to exacerbate the damage, is inexcusable.

In a world that had not been completely submerged in the surreal, that we are even discussing telecom immunity would be considered a bizarre joke. This is about domestic spying. This is about the imposition on a supposed republic of the pervasive and invasive surveillance apparatus of a police state. That's the real story. That's what Congress should be working to reveal and rectify. But they may be, instead, on the verge of immunizing those who were complicit in the Administration's crimes, thus protecting the accessories, and ensuring that the Administration will again suffer no consequences for insidious criminality, while further protecting the criminals by legalizing their criminal behavior, so they can proceed unhindered. If this comes to pass, this Congress will be as responsible as this Administration for a reprehensible abomination that further threatens the very existence of this republic.